Pa. high court clears secret grand juries

Chief Justice Ronald D. Castille

By Craig R. McCoy, Inquirer Staff Writers

Posted: June 23, 2012

The Pennsylvania Supreme Court granted approval Thursday for prosecutors to use secret grand juries to indict suspects - a step that justices say would provide law enforcement with a crucial tool to safeguard frightened witnesses.

The high court's unanimous adoption of the policy permits indicting grand juries statewide, but the move was directed at Philadelphia, where a "no snitching" culture and ugly threats in courtrooms and on the street have created a toxic atmosphere for victims and witnesses.

Under the change, witnesses would testify behind closed doors before 23-member grand juries, which would then have the power to indict. This would spare the witnesses from having to testify in public in preliminary hearings, though they would still have to testify publicly during a trial.

Chief Justice Ronald D. Castille said the change was needed to deal with an entrenched problem of witness intimidation that has grown worse since he served as Philadelphia's district attorney nearly a quarter-century ago.

For Castille and Justice Seamus P. McCaffery, the policy is the latest in a series of sweeping moves to shake up the criminal-justice system in the wake of an Inquirer investigative series that cast a spotlight on the fear infecting Philadelphia criminal courtrooms.

The newspaper's 2009 project, "Justice: Delayed, Dismissed, Denied," depicted a criminal justice system in crisis, plagued by some of the nation's lowest conviction rates, a massive fugitive problem, and unchecked witness intimidation.

The series reported that defendants charged with violent crimes walked free in almost two-thirds of cases, typically because witnesses or victims refused to testify or failed to show up for court.

McCaffery, a former homicide detective and top judge in Municipal Court, said giving the green light to indicting grand juries was overdue.

"This is big, big news," McCaffery said Thursday. He said the action would protect victims and witnesses, and permit them to "testify as to exactly what they saw."

Philadelphia District Attorney Seth Williams, who joined other prosecutors statewide in pushing for the authorization, welcomed the change.

"This is very significant," he said. "The reason why this is so important is that in almost every homicide case in Philadelphia, in almost every nonfatal shooting in Philadelphia, there is witness intimidation."

Defense attorneys have watched with little enthusiasm as momentum grew to bring back these grand juries, abolished as unnecessary in 1976. Under rules in effect until then, defendants would first be held for trial at preliminary hearings and then indicted by a jury.

These juries differ from investigating grand juries, such as the panel that brought charges against former Pennsylvania State University coach Jerry Sandusky. Investigating grand juries look into criminal activity or public policy, and issue presentments.

Some defense lawyers have said the change would merely mean that weak cases would be propped up needlessly and their eventual dismissal only delayed.

Jeffery Lindy, a prominent Philadelphia defense lawyer, said he knew from experience working with indicting grand juries as a federal prosecutor in Philadelphia and as an assistant district attorney in Brooklyn, N.Y., that such juries give the government almost unfettered power to bring a case.

And, he added, people in a community know very well who the key witnesses are, regardless of whether they appear before a grand jury or at a preliminary hearing.

"What a grand jury does is simply make the prosecutor's job easier," Lindy said.

"Do you think that there's anybody in a community where there an investigation that doesn't know who testified before a grand jury? Everybody knows. It's not going to protect anybody."

In a letter to the Rules Committee, the Pennsylvania Association of Criminal Defense Lawyers said the justices lacked the legal authority to bring back indicting grand juries and warned that the juries would trample on defendants' rights to test eyewitness testimony.

Under the Supreme Court edict, prosecutors could not use indicting grand juries in every prosecution. They would have to formally attest that they needed to use a jury because witness intimation appeared to pose a threat in a case.

Williams said his office would now develop a protocol to govern which cases were brought before the grand juries. He said decisions would be made case by case.

The high court's action came after its Rules Committee, an advisory board, formally recommended in November that indicting grand juries be reinstated.

Key advocates for the shift were two former top prosecutors, Walter M. Phillips Jr. and A. Roy DeCaro. They pointed out that Pennsylvania and Connecticut were the only states to ban indicting grand juries.

In an interview Thursday, Castille said the use of such juries did not violate the guarantees under the U.S. and Pennsylvania Constitutions that the accused have the right to confront their accusers.

"There is absolutely no right of confrontation at the preliminary hearing," Castille said. "It's only at trial."

Phillips agreed. "There's not a court in the land that would say it's a denial of due process to proceed by the way of grand juries," he said.

Over the last 2½ years, the state Supreme Court, Williams, and top local judges have made numerous changes to the criminal justice system in Philadelphia.

Among the measures, they have given prosecutors more time to bring cases, limited defense delays, overhauled the charging process, centralized hearings at the main courthouse, set up a special Bench Warrant Court to go after fugitives, and - just this month - overhauled the bail system.

The high court may not be finished yet. To tackle the fugitive issue, it is also considering a proposal to permit judges to hold trials in absentia when defendants skip court without a good reason.